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BERG v OBAMA (qui tam - sealed case)- 21 - MEMORANDUM OPINION denying relator's motion 17 for reconsideration. Signed by Judge Richard W. Roberts on 9/21/2009. (DCL) (Entered: 09/21/2009) -gov.uscourts.dcd.133905.21.0

BERG v OBAMA (qui tam - sealed case)- 21 - MEMORANDUM OPINION denying relator's motion 17 for reconsideration. Signed by Judge Richard W. Roberts on 9/21/2009. (DCL) (Entered: 09/21/2009) -gov.uscourts.dcd.133905.21.0

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Published by: Jack Ryan on Sep 22, 2009
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Relator Philip J. Berg moves for reconsideration of an orderdismissing his qui tam action against President Obama after Bergfailed to convince the United States not to seek dismissal of thecase. Because Berg does not show that justice requiresreconsideration, his motion will be denied.BACKGROUNDBerg filed this case pro se, alleging a claim under theFalse Claims Act, 31 U.S.C. § 3730 et seq., against PresidentObama claiming that the President is not a citizen of the UnitedStates, and was therefore ineligible to receive his salary as aUnited States Senator. (See Relator’s Mem. of Law in Support ofRelator’s Mot. for Recons. (“Relator’s Mem.”) at 5.) The UnitedStates sought to dismiss this action with prejudice, because the“Department of Justice has reviewed the relator’s allegations,determined that they lack merit, and concluded that theytherefore should not be pursued on the United States’ behalf[.]”
-2-(United States’ Suggestion of Dismissal at 2. On June 9, 2009, ahearing was held to allow Berg a formal opportunity to convincethe government not to end the case. The government heard Berg’srequest but continued to request dismissal, and Berg’s case wasdismissed. (See Order of June 9, 2009.)Berg has moved under Federal Rule of Civil Procedure 59(e)for reconsideration of the order dismissing the case. He arguesthat it was a violation of federal conflict of interest statutesfor U.S. Department of Justice lawyers to urge dismissal sincethey are employed by the Attorney General who reports to thePresident. The government opposes Berg’s motion.DISCUSSION“While the court has considerable discretion in ruling on aRule 59(e) motion, the reconsideration and amendment of aprevious order is an unusual measure.” City of Moundridge v.Exxon Mobil Corp., 244 F.R.D. 10, 11-12 (D.D.C. 2007) (quotingEl-Shifa Pharm. Indus. v. United States, Civil Action No. 01-731(RWR), 2007 WL 950082, at *1 (D.D.C. Mar. 28, 2007) (internalcitations omitted)). “A motion to alter the judgment need not begranted unless there is an intervening change of controlling law,new evidence becomes available, or there is a need to correct aclear error or prevent manifest injustice.” City of Moundridge,244 F.R.D. at 12 (quoting Messina v. Krakower, 439 F.3d 755, 758(D.C. Cir. 2006)).
In Hoyte, 518 F.3d 61, 65 (D.C. Cir. 2008), the court of
appeals noted that there “may be an exception” to thegovernment’s almost unfettered authority to dismiss a FalseClaims Act claim for “fraud on the court.” Fraud on the court is“a scheme to interfere with the judicial machinery performing thetask of impartial adjudication.” Synanon Church v. UnitedStates, 579 F. Supp. 967, 972 (D.D.C. 1984) (quoting Pfizer, Inc.v. Int’l Rectifier Corp., 538 F.2d 180, 195 (8th Cir. 1976)).“Fraud on the court is fraud which is directed to the judicialmachinery itself and is not fraud between the parties orfraudulent documents, false statements or perjury.” Baltia AirThe False Claims Act provides that “[t]he Government maydismiss [a qui tam] action notwithstanding the objections of the[relator] if the [relator] has been notified by the Government ofthe filing of the motion and the court has provided the personwith an opportunity for a hearing on the motion.” 31 U.S.C.§ 3730(c)(2)(A). The “function of a hearing when the relatorrequests one is simply to give the relator a formal opportunityto convince the government not to end the case.” Swift v. UnitedStates, 318 F.3d 250, 253 (D.C. Cir. 2003). In this circuit, theGovernment has, essentially, “an unfettered right to dismiss aqui tam action,” based upon (1) separation of powers, (2) “theGovernment’s broad discretion in initiating or continuing acriminal prosecution,” (3) Federal Rule of Civil Procedure41(a)(1)(i), which allows a plaintiff to dismiss a civil action“without order of the court,” and (4) the fact that section§ 3730(c)(2)(A) grants “[t]he Government,” not the court,unilateral authority to “dismiss the action notwithstanding theobjections of the person initiating the action.See Hoyte ex

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